With the legalization of recreational marijuana on the rise, there is much to keep in mind when it comes to background checks. For companies that typically drug test for marijuana, now is the time to become aware of these new regulations. Employers need to be looking at how to test for marijuana legally, fairly, and safely with a tool that isolates current use only; such as a tool that can test if an employee has used marijuana right before or during work hours.

One challenging aspect of this recent law is figuring out where your company stands as far as testing for marijuana while remaining fair to everyone. In states where recreational marijuana is now legal, such as New York, it is illegal for employers to discriminate against an individual due to a positive marijuana test.

This includes preemployment screening. In participating states, there is nothing that goes against individuals of legal age from participating in the consumption of marijuana. In fact, marijuana has over 55 million users and 183 million adults have legal access to it, as it is now legal medically in 36 states and recreationally in 19 states.

One complication is differentiating between recent and current use. If someone consumed cannabis over the weekend, and takes a drug test Monday morning, current practices would result in the individual testing positive. This does not mean they were impaired during or before work, nor were they doing anything illegal. If employers refused to hire, or fired that individual because of this, it would not be fair. A zero tolerance policy is no longer enforceable. With the urine test, the most frequently used, a moderate to heavy user can test positive for up to a month after last use.

Even with a saliva test, an individual can still test positive for up to 48 hours after last use. There is no current test on the market that tests exclusively for peak impairment, which is the period of two to three hours after consumption. One potential new technology is a breathalyzer test. Easy to administer, like an alcohol breathalyzer test, this test would, however, focus more so on when an individual consumed cannabis, as opposed to how much THC is in their system.

Breath is the only way to identify recent use that best correlates to the peak impairment window. Benefits of this for employers would include relevant results, broadening the hiring pool, keeping good employees, and possibly eliminating costs. The biggest benefit for employees would be legal, responsible use without the fear of unfair punishment.

Until a technology like this is available, where can the line be drawn concerning safety and fairness? Policy changes, though not easy, may be necessary to balance the two. Regarding safety, it is important to make sure employees and clients and/or customers feel safe working with the people around them. From a hiring perspective, employers have lost 60% of new hires due to positive test results in the past, and replacing employees is costly.

Should marijuana be dropped from the testing panel altogether? Not necessarily, but what is trying to be accomplished, and why, needs to be considered while integrating these new policies. New policies should be structured to keep workplaces safe, legal, and fair.